New NZ Copyright Law : Guilt by association

Three Strikes and You Are Terminated

In the very same month that the National Government is planning to restore our election year freedom of speech – by repealing Labour’s disastrous Electoral Finance Act – they are planning to launch an attack on our internet freedom.

Under a new provision in the Copyright Act (Section 92A), which comes into force on 28 February, internet users’ accounts can be terminated as a result of unproven accusations of piracy.[1] Section 92A states that if a copyright owner thinks that an internet user is guilty of repeatedly breaching copyright, then the user’s Internet Service Provider (ISP) will be forced the terminate their internet connections and websites. Contrary to the principle of “innocent until proven guilty”, this will occur without evidence, without a fair trial, without any right of appeal, and without any punishment for false or vexatious accusations of copyright infringement.

Section 92A has serious implications for businesses, public libraries, schools and other government agencies, which could all be disconnected if one of their users has been involved in illegal downloading. Similarly a family’s access could be cut off if one of the children – unbeknown to their parents – illegally downloads music or videos.

“Most businesses in New Zealand will be unaware of this, but by the end of the month they will be at risk of having their Internet access terminated, if they are accused of repeat copyright infringement. They do not have to be found guilty. They do not need to have been infringing themselves. A new unbalanced law has the American film and music industries able to pressure ISPs to terminate users (any individual or business) solely on their say so. And if an ISP resists, then they may get sued for not complying with the new law – as has happened in Australia”.

This abhorrent state of affairs has come about as a result of a political sleight of hand. David outlines how that happened:

“The multi-party Commerce Select Committee that heard evidence on the bill, decided unanimously to delete this section from the proposed law. But lobbying continued behind the scenes and the Labour Government decided to over-ride the Select Committee, and reinsert s92A into the bill at the Committee of the Whole consideration. The National Party also voted to reinsert s92A into the bill, despite having voted to remove it at select committee stage”. To read David’s full article click here>>> [See https://www.nzcpr.com]

In other words, while those who were concerned about the future of the internet believed that Labour’s plan to turn New Zealand ISPs into the police, judge, jury and executioner for the entertainment industry had been abandoned, the government was secretly planning to introduce the provision – without notice – during the final stages of the Parliamentary debate.[2] With everyone caught off guard, the provision became law.

Given the almost unanimous opposition to section 92A and the underhand way in which it was re-introduced, there has been a strong expectation that the new National Government would throw it out. That is especially the case when everyone knows that the law is more draconian than almost anywhere in the world and is so badly drafted that copyright lawyers have warned that it will prove to be unworkable and should be scrapped.[3] However, contrary to all expectations, National has stated that they plan to back the new law and enforce it!

When National won office in the early nineties, they passed two of Labour’s badly drafted and ill-advised laws, the Resource Management Act and the Child Support Act, both of which have turned into monsters. As a matter of principle National should not enact any of Labour’s badly drafted laws, particularly if they opposed them at the start!

“Three-strike” laws – as proposals to force ISPs to cut off internet users accused of illegally downloading copyright material have been called – are being pushed in many parts of the world by “Big Content” representatives of the entertainment industries. While Australia and France have recently succumbed and agreed to enact such laws, the European Parliament and the UK Government have rejected them.

As the Herald states, “The UK government’s back-down also calls the move by the National government further into question. If the government and ISP’s of one of the world’s strongest economies were struggling to enforce similar laws to the proposed Section 92, it is likely that smaller New Zealand ISPs will be even more hard pressed to make the proposed laws workable.”[4]

Germany has also strongly rejected three-strike laws on the basis that they are a gross invasion of privacy.[5] With a relatively recent history of government perpetrated atrocities against citizens, Germans are mindful that personal information was collected and used by the state to track down innocent victims. As a result, they are very protective of privacy laws and will not tolerate attacks under any guise.

The National Government’s proposed undermining of privacy and freedom on the internet should be a huge issue of concern to all Government MPs. After all, National, ACT, the Maori Party and United Future all opposed the Electoral Finance Bill on the basis that it restricted our freedom of speech during election year. With a track record of fighting for the rights of individuals to be free to communicate without interference from Big Brother government, it is inconceivable that these MPs will now support a law that could see internet providers monitoring everything that internet users are doing or saying. It would be a gross abuse of privacy and free speech.

Only Peter Dunne, who is calling for the law to be scrapped, and the Green Party, who voted against it, appear to have recogised that Parliament should not be putting the demands of the entertainment industry ahead of the rights of individual citizens to privacy and freedom on the internet. The UK, German and European Parliaments have recognised this principle; ours has not.

Of course there is a serious concern that this legislation is just a first step. The internet has facilitated intellectual freedom and the freedom of expression on an unimaginable scale giving individuals undreamed of power to communicate and interact instantaneously, world-wide. At the click of a button we can link up with others of a like mind, discover treasures from the world’s best libraries, museums and galleries, visit our bank, do the shopping and go to work – all from the comfort of our own home, and we can become “citizen” video stars, photographers, and journalists, through the internet’s ability to transmit images, sound and messages instantaneously.

The development of the Internet is an achievement of historic proportions, but the fact that it has evolved in a free and unfettered way threatens socialist governments and established business interests. That’s why powerful lobbies in the music and film industries are seeking to have government protect their industries from change. Having said that, it is important to note that many in the creative industries are also horrified by what the government is doing. They see technological change and the internet as an opportunity not a threat, and have set up the Creative Freedom Foundation to fight Section 92A.[6]

New Zealanders are enthusiastic internet users. A survey carried out in 2007 by AUT, shows the trends: 78% of New Zealanders use the Internet; 15% are online at home for at least 20 hours a week; 66% of home-based users have broadband; 61% would be very concerned if they lost their internet access; 71% rate the Internet as a more important source of information than family and friends (56%) or newspapers and television (52%); 59% look for news online weekly and 34% daily; 53% use their bank’s online services at least weekly; 77% of users check their email every day; 28% participate in social networking sites like MySpace or Facebook every week; and 65% say the Internet has increased their contact with other people, especially those overseas.[7]

Internet users are connected to the global network of interconnected computers that makes up the Internet by their ISP. While they have a contract with their ISP and a unique identifying code, it is impossible for the ISP to monitor the content they are transmitting without installing sophisticated inspection and monitoring technology. This means, that if the new Section 92A comes into force as planned, compliance costs for ISPs will escalate as codes of practice are developed and implemented[8], and monitoring technology to police transmitted data installed. These changes will not only push up the cost of internet connections for users and slow down speeds, but there will be a profound loss of freedom and privacy as internet traffic comes under increasing surveillance.

Last week Peter Dunne called on the Government to defer the implementation of section 92A for three to six months “with a view to discarding it”.[9] The Internet Service Providers Association – supported by the rest of the sector – has also called on the Government to drop the changes before they come into effect, preferring instead a first principles review of copyright law to properly take into account the digital age and the unstoppable changes that lie ahead.